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Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 1 of 33 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



CENTER FOR MEDICARE ADVOCACY, INC. 

Plaintiff, 



UNITED STATES DEPARTMENT OF 
HEALTH AND HUMAN SERVICES, 



Civil Action No. 05-2266 (RBW) 



MEMORANDUM OPINION 



The plaintiff filed this lawsuit on November 23, 2005, against the defendant pursuant to 
the Freedom of hiformation Act ("FOIA"), 5 U.S.C. § 552 (2000). Complaint ("CompL"). 
Specifically, the plaintiff asserts that it requested from the defendant pursuant to the FOIA "[a]ll 
articles, reports, studies, memoranda, letters and writings of any kind concerning video- 
conferencing . . . that have been or are being reviewed and/or used in designing and/or 
establishing the Medicare administrative law judge hearings by [video-conferencing] that are 
described at 42 C.F.R. §§ 405. 1036, et seg," Id, Tj 4. Further, the plaintiff contends that the 
"[djefendant failed to comply with the timeliness requirement for responding to [the] plaintiffs 
request for information." Id H 7. The plaintiff requests that the defendant's failure to produce 
the documents be declared "unlawfial" and that the defendant be ordered "to make the requested 
records available to [the] plaintiff." Id at 3. Currently before the Court are the Memorandum of 
Points and Authorities in Support of Plaintiff s Motion for Injunction ("PL's Mot.") and the 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 2 of 33 

Defendant's Cross-Motion for Summary Judgment ("Def 's Cross-Mot.")/ For the reasons set 
forth below, both parties' motions are granted in part and denied in part. 
I. Background 
The plaintiff, the Center for Medicare Advocacy, Lie, "is a non-profit corporation that 
educates and advocates for medicare beneficiaries across the nation." Compl. Tl 3. The plaintiff 
has offices in Connecticut, Arizona, and here in Washington, D.C. Id hi a letter dated August 
25, 2005, the plaintiff requested pursuant to the FOIA, 5 U.S.C. § 552, that the defendant, the 
Department of Health and Human Services (HHS), provide to it all documents pertaining to the 
design and establishment of Medicare administrative law judge hearings conducted with the use 
of video-conferencing technology. PL's Mot., Exhibit ("Ex.") A (Letter from Sally Hart, Counsel 
for Center for Medicare Advocacy, Inc., to Freedom of Information Officer Centers for Medicare 
& Medicaid Services, dated August 25, 2005) ("Hart Aug. 25, 2005 Letter"); Defendant's 
Memorandum of Points and Authorities in Opposition to Plaintiffs Motion for Injunction and in 
Support of Defendant's Cross-Motion for Summary Judgment ("Def 's Cross-Mot. Mem."), 
(Declaration of Robert Eckert, Director, Freedom of Information/Privacy Acts Division, Office 
of the Assistant Secretary for Public Affairs, Department of Health and Human Services) 
("Eckert Deck") Tl 4, Ex. 1 (Hart Aug. 25, 2005 Letter). The plaintiff further requested that the 
defendant waive any applicable fees associated with its request, and asked that the defendant 



Also submitted in connection witli tlie parties' motions are (1) the Plaintiff's Statement of Material Facts 
and Exhibits in Support of Motion for Injunction; (2) the Defendant's Statement of Material Fact as to Which There 
is No Genuine Issue, Pursuant to Local Rule 7(k); (3) the Defendant's Memorandum of Points and Authorities in 
Opposition to Plaintiffs Motion for Injunction and in Support of Defendant's Cross-Motion for Summary Judgment 
("Def.'s Cross-Mot. Mem."); (4) the Plaintiffs Opposition to Defendant's Cross-Motion for Summary Judgment and 
Reply in Support of Plaintiff s Motion for Injunction ("PL's Opp'n"); and (5) the Defendant's Memorandum of 
Points and Authorities in Reply to Plaintiff's Opposition to Defendant's Cross-Motion for Summary Judgment 
("Def 's Reply"). 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 3 of 33 

process the plaintiffs request on an expedited basis. PL's Mot., Ex. A (Hart Aug. 25, 2005 
Letter); Def 's Cross-Mot. Mem., Eckert Dec!., Ex. 1 (Hart Aug. 25, 2005 Letter). 

By letter dated October 3, 2005, the defendant acknowledged receipt of the plaintiffs 
document request. PL's Mot., Ex. B (Letter from Michael Marquis, Director of Freedom of 
Liformation Group, Department of Health & Human Services, Centers for Medicare & Medicaid 
Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated October 3, 2005 ) 
("Marquis Oct. 3, 2005 Letter"); Def 's Cross-Mot. Mem., Eckert Decl. Tj 4, Ex. 2 (Marquis Oct. 
3, 2005 Letter). The defendant also requested that the plaintiff provide further information 
concerning its request for a fee waiver so as to enable the defendant to make a determination on 
this request. PL's Mot., Ex. B (Marquis Oct. 3, 2005 Letter); Def 's Cross-Mot. Mem., Eckert 
DecL, Ex. 2 (Marquis Oct. 3, 2005 Letter). 

Having not received the requested documents from the defendant or an indication that the 
fee for producing the documents had been waived, the plaintiff informed the defendant by letter 
that it was construing the non-responsiveness as a denial of its requests. PL's Mot., Ex. C 
(Letter from Sally Hart, Counsel for Center for Medicare Advocacy, Lie, to Michael Marquis, 
Director of Freedom of Liformation Group, Department of Health & Human Services, Centers 
for Medicare & Medicaid Services, dated October 31, 2005 ) ("Hart Oct. 31, 2005 Letter"); 
Def 's Cross-Mot. Mem., Eckert Decl. T| 6, Ex. 3 (Hart Oct. 3 1 , 2005 Letter). The plaintiff also 
informed the defendant in its letter that it was administratively appealing both the defendant's 
failure to produce the requested documents and its denial of the plaintiffs fee waiver request. 
PL's Mot., Ex. C (Hart Oct. 31, 2005 Letter). The defendant acknowledged receipt of the 
plaintiffs October 31, 2005 appeal by letter on November 16, 2005. PL's Mot., Ex. D (Letter 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 4 of 33 

from Michael Marquis, Director of Freedom of Information Group, Department of Health & 
Human Services, Centers for Medicare & Medicaid Services, to Sally Hart, Counsel for Center 
for Medicare Advocacy, Lie, dated November 16, 2005 ) ("Marquis Nov. 16, 2005 Letter"); 
Def 's Cross-Mot. Mem., Eckert Decl. Tl 7, Ex. 4 (Marquis Nov. 16, 2005 Letter). 

The plaintiff commenced this judicial action on November 23, 2005. See Compl. 
Subsequently, by letter dated December 27, 2005, the defendant informed the plaintiff that its 
requests had been referred to Robert Eckert, Director of HHS's Freedom of hiformation/Privacy 
Acts Division, Office of the Assistant Secretary for Public Affairs. PL's Mot., Ex. E (Letter from 
Michael Marquis, Director of Freedom of Information Group, Department of Health & Human 
Services, Centers for Medicare & Medicaid Services, to Sally Hart, Counsel for Center for 
Medicare Advocacy, Inc., dated December 27, 2005 ) ("Marquis Dec. 27, 2005 Letter"); Def 's 
Cross-Mot. Mem., Eckert Decl. Tj 10, Ex. 5 (Marquis Dec. 27, 2005 Letter). This letter further 
informed the plaintiff that Mr. Eckert 's office would respond both to the plaintiffs request for 
records and to its request for a fee waiver. PL's Mot., Ex. E (Letter from Michael Marquis, 
Director of Freedom of Information Group, Department of Health & Human Services, Centers 
for Medicare & Medicaid Services, to Sally Hart, Counsel for Center for Medicare Advocacy, 
Lie, dated December 27, 2005 ) ("Marquis Dec. 27, 2005 Letter"); Def 's Cross-Mot. Mem., 
Eckert Decl. Tj 10 (indicating that the Centers for Medicare & Medicaid Services Freedom of 
Information Group advised the plaintiff by letter that Mr. Eckert' s office would respond to the 
plaintiffs fee waiver request), Ex. 5 (Marquis Dec. 27, 2005 Letter). 

On January 18, 2006, the defendant filed its Answer to the plaintiffs Complaint. By 
letter dated January 19, 2006, the defendant mailed the plaintiff its first interim response to the 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 5 of 33 

plaintiffs requests. PL's Mot., Ex. F (Letter from Robert Eckert, Director of Freedom of 
Information Privacy Acts Division, Department of Health & Human Services, to Sally Hart, 
Counsel for Center for Medicare Advocacy, Inc., dated January 19, 2006) ("Eckert Jan. 19, 2006 
Letter"); Def 's Cross-Mot. Mem., Eckert Decl. Tl 1 1, Ex. 6 ("Eckert Jan. 19, 2006 Letter"). In 
this letter, the defendant informed the plaintiff that, as of the date of the letter, it had reviewed 
thirty-seven pages of responsive records and had determined that thirty-three pages could be 
released in full and that an additional page could be partially released. PL's Mot., Ex. F (Eckert 
Jan. 19, 2006 Letter); Def 's Cross-Mot. Mem., Eckert Decl. T| 1 1, Ex. 6 (Eckert Jan. 19, 2006 
Letter). The remaining portion of the redacted page was withheld pursuant to Exemption 5 of the 
FOIA, 5 U.S.C. § 552(b)(5), as were the other three pages of records that were withheld in their 
entirety. PL's Mot., Ex. F (Eckert Jan. 19, 2006 Letter); Def 's Cross-Mot. Mem., Eckert Decl. 
Tl 1 1, Ex. 6 (Eckert Jan. 19, 2006 Letter). The defendant further informed the plaintiff that it had 
determined that of the records it had reviewed, ten pages in full and portions of an additional 
page contained information originating with the Social Security Administration ("SSA"). PL's 
Mot., Ex. F (Eckert Jan. 19, 2006 Letter); Def 's Cross-Mot. Mem., Eckert Decl. ^ 1 1, Ex. 6 
(Eckert Jan. 19, 2006 Letter). The defendant therefore advised the plaintiff that these records 
were being referred to the SSA for processing and its direct response to the plaintiff. PL's Mot., 
Ex. F (Eckert Jan. 19, 2006 Letter); Def 's Cross-Mot. Mem., Eckert Decl. T| 1 1, Ex. 6 (Eckert 
Jan. 19, 2006 Letter). The defendant's letter also informed the plaintiff that it was denying the 
plaintiffs requests for a total fee waiver and for expedited processing. Id The plaintiff again 
appealed the fee waiver denial by letter dated February 21, 2006. PL's Mot., Ex. G (Letter from 
Patricia Nemore, Counsel for Center for Medicare Advocacy, Inc., to the Deputy Assistant 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 6 of 33 

Secretary for Public Affairs (Media), Department of Health & Human Services, dated February 
21, 2006) ("Nemore Feb. 21, 2006 Letter"); Def 's Cross-Mot. Mem., Eckert Decl. ^ 12, Ex. 7 
(Letter from Patricia Nemore, Counsel for Center for Medicare Advocacy, Inc., to the Deputy 
Assistant Secretary for Public Affairs (Media), Department of Health & Human Services, dated 
February 21, 2006) (Nemore Feb. 21, 2006 Letter).^ 

hi a letter dated March 2, 2006, the SSA informed the plaintiff that it was withholding in 
full, pursuant to Exemption 5 of the FOIA, the ten pages and one partial page referred to it by the 
defendant. PL's Mot., Ex. H (Letter to Sally Hart, Counsel for Center for Medicare Advocacy, 
Lie, from Joyce Schaul, Freedom of Liformation Officer, Social Security Administration, dated 
March 2, 2006) ("Schaul March 2, 2006 Letter"); Def 's Cross-Mot. Mem., Declaration of Ethel 
Burrows, Social Lisurance Specialist in the Office of Pubic Disclosure of the Social Security 
Administration ("Burrows Decl."), Ex. iii (Schaul March 2, 2006 Letter). Subsequently, the 
plaintiff administratively appealed the SSA's decision to withhold the documents. PL's Mot., 
Ex. I (Letter from Sally Hart, Counsel for Center for Medicare Advocacy, Inc., to the Executive 
Director, Office of Public Disclosure, Social Security Administration, dated March 8, 2006) 
("Hart Mar. 8, 2006 Letter"); Def 's Cross-Mot. Mem., Burrows Decl. Tj 13, Ex. iv (Letter from 
Sally Hart, Counsel for Center for Medicare Advocacy, Inc., to the Executive Director, Office of 
Public Disclosure, Social Security Administration dated March 8, 2006) ("Hart Mar. 8, 2006 
Letter"). On the same day, March 8, 2006, the defendant made its second interim response to the 
plaintiffs document request. PL's Mot., Ex. J (Letter from Department of Health & Human 



Eckert inaccurately indicates that the letter is dated February 17, rather than February 21. Def.'s Cro 
Mot. Mem., Eckert Decl. Tj 12. 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 7 of 33 

Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated March 8, 2006) 
("HHS Mar. 8, 2006 Letter"); Def 's Cross-Mot. Mem., Eckert DecL, Ex. 8 (Letter from 
Department of Health & Human Services to Sally Hart, Counsel for Center for Medicare 
Advocacy, Inc., dated March 8, 2006) ("HHS Mar. 8, 2006 Letter"). This response resulting in 
the defendant releasing to the plaintiff an additional 250 pages in full and the withholding of an 
additional 7159 pages were withheld pursuant to Exemption 5 of the FOIA. PL's Mot., Ex. J 
(HHS Mar. 8, 2006 Letter); Def 's Cross-Mot. Mem., Eckert Deck, Ex. 8 (HHS Mar. 8, 2006 
Letter). 

The defendant advised the plaintiff in a letter dated March 20, 2006, that it had received 
the plaintiffs appeal of the denial of its August 25, 2005 fee waiver request. PL's Mot., Ex. K 
(Letter from Robert Eckert, Director of Freedom of Information/Privacy Acts Division Office of 
Public Affairs, Department of Health & Human Services, to Sally Hart, Counsel for Center for 
Medicare Advocacy, Lie, dated March 20, 2006) ("Eckert Mar. 20, 2006 Letter"); Def 's Cross- 
Mot. Mem., Eckert Deck Tj 14, Ex. 9 (Letter from Robert Eckert, Director of Freedom of 
Information/Privacy Acts Division Office of Public Affairs, Department of Health & Human 
Services, to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated March 20, 2006) 
("Eckert Mar. 20, 2006 Letter"). The defendant's letter further informed the plaintiff that it had 
identified an additional 425 pages of responsive records that would be released to the plaintiff 
PL's Mot., Ex. K (Eckert Mar. 20, 2006 Letter); Def 's Cross-Mot. Mem., Eckert Deck T| 14, Ex. 
9 (Eckert Mar. 20, 2006 Letter). When combined with the 284 pages previously released by the 
defendant on January 19 and March 8, 2006, the defendant's fee for processing the plaintiffs 
document request totaled $60.90, based on a ten cents per page charge, excluding any charge for 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 8 of 33 

the initial 100 pages. PL's Mot., Ex. K (Eckert Mar. 20, 2006 Letter); Def.'s Cross-Mot. Mem., 
Eckert Decl. T| 14, Ex. 9 (Eckert Mar. 20, 2006 Letter). The defendant stated that the plaintiff 
would have to agree to pay the processing fee before the defendant would conduct any further 
processing of the document request. PL's Mot., Ex. K (Eckert Mar. 20, 2006 Letter); Def 's 
Cross-Mot. Mem., Eckert Decl. T| 14, Ex. 9 (Eckert Mar. 20, 2006 Letter). 

By letter dated April 7, 2006, the plaintiff informed the defendant that it was appealing 
the withholding of the documents reference in the defendant's second interim document 
response. Def 's Cross- Mot. Mem., Eckert Decl. Tj 15, Ex. 10 (Letter from Sally Hart, Counsel 
for Center for Medicare Advocacy, Inc., to Deputy Assistant Secretary for Public Affairs 
(Media), United States Department of Health and Human Services, dated April 7, 2006) ("Hart 
Apr. 7, 2006 Letter"); PL's Mot., Ex. L (Letter from Sally Hart, Counsel for Center for Medicare 
Advocacy, Inc., to Deputy Assistant Secretary for Public Affairs (Media), United States 
Department of Health and Human Services dated April 7, 2006) ("Hart Apr. 7, 2006 Letter"). On 
April 13, 2006, the plaintiff filed its Motion for Injunction, seeking the release of all responsive 
documents, a Vaughn '' Index describing the withheld documents, a fee waiver, and attorney fees. 
See PL's Mot. at 10. By letter dated April 17, 2006, the SSA denied the plaintiffs administrative 
appeal of its withholding of the documents it had received from the defendant in its initial 
referral to the SSA. Def 's Cross-Mot. Mem., Burrows Decl. Tj 14, Ex. v (Letter from Jonathan 
Cantor, Executive Director, Office of Public Disclosure, Social Security Administration, to Sally 
Hart, Counsel for Center for Medicare Advocacy, Inc., dated April 17, 2006) ("Cantor Apr. 17, 
2006 Letter"). 

^ Vaughn v. Rosen . 523 F.2d 1136 (D.C. Cir. 1975). 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 9 of 33 

By letter dated May 15, 2006, the defendant again denied the plaintiffs administrative 
appeal of its denial of the plaintiffs fee waiver request. Def 's Cross-Mot. Mem., Eckert Decl. Tl 
16, Ex. 1 1 (Letter from Christina Pearson, Deputy Assistant Secretary for Public Affairs 
(Media), to Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated May 15, 2006) 
("Pearson May 15, 2006 Letter"). This administrative appeal decision outlined the standards the 
defendant uses in adjudicating fee waiver requests, which includes evaluating (1) whether the 
requested documents pertain to activities of the federal government; (2) whether disclosure 
would reveal meaningflil information about government operations that is not already public 
knowledge; (3) will the disclosure advance knowledge to the public at large, as opposed to just a 
narrow segment of the public; and (4) whether the contribution to public knowledge will be 
significant. Def 's Cross-Mot. Mem., Eckert Decl. Tl 17, Ex. 1 l(Pearson May 15, 2006 Letter). 
It then explained how in several ways the plaintiff had failed to satisfy these standards. Def 's 
Cross-Mot. Mem., Eckert Decl. TJH 18-21, Ex. 1 1 (Pearson May 15, 2006 Letter). For example, 
some of the responsive records were determined not to concern government operations or 
activities. Def 's Cross-Mot. Mem., Eckert Decl. Tj 18, Ex. 1 1 (Pearson May 15, 2006 Letter). It 
fiirther noted that because the vast majority of records released to the plaintiff at this point were 
already publicly available, the plaintiff had not shown how further dissemination of the 
documents to it would significantly benefit the public. Def 's Cross-Mot. Mem., Eckert Decl. Tj 
19, Ex. 1 1 (Pearson May 15, 2006 Letter). Finally, the defendant's letter explained that because 
some of the responsive records concerned mere internal HHS administrative matters, those 
records likewise would not enlighten the public in a significant way about the operations or 
activities of the government. Def 's Cross-Mot. Mem., Eckert Decl. ^ 20, Ex. 1 1 (Pearson May 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 1 of 33 

15, 2006 Letter ). Because the defendant determined that the plaintiff had failed to satisfy factors 
(1), (2), and (4), of the standards listed above, the plaintiffs request for a fee waiver was denied. 
Def 's Cross-Mot Mem., Eckert Decl. ^ 21, Ex. 1 1 (Pearson May 15, 2006 Letter).^ 

In an e-mail dated June 29, 2006, the plaintiff agreed to pay the applicable processing fees 
if the defendant's fee waiver denial was ultimately upheld by the Court. Def 's Cross-Mot., 
Eckert Decl. Tj 13, Ex. 13 (E-mail from Gill Deford, Counsel for Center for Medicare Advocacy, 
hic, to Frances Wharton, dated June 29, 2006) ("Deford June 29, 2006 E-mail"). On July 10, 
2006, the defendant made a further interim release of responsive documents to the plaintiff. 
Def 's Cross-Mot. Mem., Eckert Decl. Till 23-24, Ex. 14 (Letter from Robert Eckert, Director of 
Freedom Of Information/Privacy Acts Division Office of Public Affairs, to Sally Hart, Counsel 
for Center for Medicare Advocacy, Inc., dated July 10, 2006) ("Eckert July 10, 2006 Letter"). 
This resulted in the release in full of 319 additional documents. Def 's Cross-Mot. Mem., Eckert 
Decl. Tl 24, Ex. 14 (Eckert July 10, 2006 Letter). The defendant withheld a portion of one 
document pursuant to FOIA Exemption 6.^ Def 's Cross-Mot. Mem., Eckert Decl. Tl 24, Ex. 14 
(July 10, 2006 Letter). It also withheld portions of two pages and ninety-nine pages in full 
pursuant to Exemption 5 of the FOIA. Def 's Cross-Mot. Mem., Eckert Decl. TITJ 23-24, Ex. 14 
(July 10, 2006 Letter). Additionally, the defendant informed the plaintiff that it had referred 251 



The defendant's letter also explained that because the plaintiff had failed to meet the public interest factor 
of the fee waiver test, it was unnecessary for the defendant to evaluate whether the plaintiff had any commercial 
interest in the release of the records. Def 's Cross-Mot. Mem., Eckert Decl. H 21 n.l, Ex. 11 (Pearson May 15, 2006 
Letter). 

The Vaughn index indicates that the document withheld pursuant to FOIA Exemption 6 to protect the 
name of a private citizen who had commented on a proposed regulation is not being challenged by the plaintiff 
Def.'s Cross-Mot. Mem., Vaughn Index of Withheld Documents for First Interim Release, dated January 19, 2006, 
July 10 and 12, 2006, at 185. 

10 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 11 of 33 

more pages of responsive documents that had originated with SSA to that agency for processing 
and its direct response to the plaintiff. Def 's Cross-Mot. Mem., Eckert Decl. TJTl 23-24, Ex. 14 
(July 10, 2006 Letter). The defendant further informed the plaintiff that based upon this new 
release of documents, the plaintiff now owed the defendant $359.70 in fees. Def 's Cross-Mot. 
Mem., Eckert Decl. Till 23-24, Ex. 14 (July 10, 2006 Letter). Finally, this letter corrected 
inadvertent mistakes in the page counts associated with the defendant's prior releases of 
documents to the plaintiff Def 's Cross-Mot. Mem., Eckert Decl. tH 23-24, Ex. 14 (July 10, 2006 
Letter). 

On July 12, 2006, the defendant completed its processing of the documents responsive to 
the plaintiffs request. Def 's Cross-Mot. Mem., Eckert Decl. ^ 25, Ex. 15 (Letter from Robert 
Eckert, Director of Freedom of Information/Privacy Acts Division Office of Public Affairs, to 
Sally Hart, Counsel for Center for Medicare Advocacy, Inc., dated July 12, 2006) ("July 12, 2006 
Letter"). This resulted in the release of an additional ten pages in full to the plaintiff and another 
459 pages were withheld pursuant to FOIA Exemption 5. Id Because of the limited number of 
additional pages released, the defendant informed the plaintiff that no additional fees would be 
assessed. Id. Then, on July 13, 2006, the SSA informed the plaintiff of the results of the 
processing that it had undertaken of the second set of documents referred to it by the defendant. 
Def 's Cross-Mot. Mem., Burrows Decl. ^ 10, Ex. vii (Letter from Wilhe Polk, Freedom of 
Information Officer, Social Security Administration, to Sally Hart, Counsel for Center for 
Medicare Advocacy, dated July 13, 2006) ("Polk July 13, 2006 Letter"). The SSA released in 
fiill to the plaintiff 70 pages of documents, released in part three pages of documents, and 
withheld in fiill 178 pages of documents. Id. The completely and partially withheld documents 

11 



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were withheld pursuant to Exemptions 5 and 6 of the FOIA. Id. 

hi its subsequent preparation of the Vaughn Index, the defendant's legal counsel 
determined that some of the records the defendant had previously withheld from the plaintiff 
could be released. Def 's Cross-Mot. Mem., Eckert Decl. Tl 30. As a result of this assessment, 
the defendant made three supplemental releases to the plaintiff, resulting in the release of an 
additional 65 pages. Id All of the documents or partial documents the defendant continued to 
withhold following the completion of the Vaughn index have been withheld under Exemption 5 
oftheFOIA. Id T|31. 

Among the responsive documents located by the defendant and not released to the 
plaintiff were draft reports prepared by the Government Accountabihty Office ("GAO"), which is 
"an agent of the legislative branch." Def 's Cross-Mot. Mem., Declaration of Patricia Mantoan, 
Attorney, General Law Division, Office of the General Counsel in the United States Department 
of Health and Human Services Tj 4. In cover letters that accompanied these draft reports when 
they were presented to the defendant, the GAO specifically instructed the defendant that the 
drafts remained the property of the GAO, their contents were not to be shared or released for any 
purposes, and that upon request by the GAO all electronic copies of the documents were to 
destroyed and any hard copies of drafts were to be returned to the GAO. Id., Ex. a (Letter from 
the United States Government Accountability Office to Leslie Aronovitz, Director, Health Care- 
Program Administration and Integrity Issues, dated August 27, 2004). In addition to its refusal to 
produce these draft reports, the defendant and the SSA have withheld documents pursuant to the 
deliberative process privilege of Exemption 5 of the FOIA. Def 's Cross-Mot. Mem., Eckert 
Decl. TlTl 31-33; Burrows Decl. Tm 13-14. These documents consist of drafts, proposals, 

12 



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recommendations, and requests for advice concerning the transfer of the Medicare appeals 
hearing from the SSA to the defendant and the use of video-conferencing technology to conduct 
the hearings. Def 's Cross-Mot. Mem., Eckert Decl. tH 32-33; Burrows Decl. tH 13-14. The 
defendant contends that these documents are either internal HHS documents, are documents 
exchanged between the defendant and other Executive Branch agencies, are draft responses to 
GAO or to congressional members, are documents containing advice and recommendations 
about draft HHS comments on GAO reports concerning the transfer of the Medicare appeals 
function from SSA to HHS, or are documents exchanged between the defendant and a contractor 
who upon request had provided its expert opinion on the feasibility of using video-conferencing 
technology to conduct the Medicare appeals hearings. Def 's Cross-Mot. Mem., Eckert Decl. 
Tl 32. All of the records withheld by the SSA are either internal SSA documents or documents 
exchanged between the SSA and the defendant and were withheld pursuant to the deliberative 
process privilege of Exemption 5 of the FOIA. Id The defendant also withheld documents 
pursuant to Exemption 5 of the FOIA based upon the attorney-client privilege because they 
allegedly reflect the exchange of confidential communications between agency-clients and their 
attorneys. Id. H 34. 

In summary, the defendant released to the plaintiff 1 1 02 pages in full and four pages in 
part, while withholding in full 7720 pages. Defendant's Statement of Material Facts as to Which 
There is No Genuine Issue, Pursuant to Local Rule 7(h) Tl 26. In addition, the SSA released to the 
plaintiff fifty-seven pages in full, fifteen pages in part, and withheld in fiill 149 pages. Id. Both 
the defendant and SSA represent that every withheld document was reviewed to assess whether 
any non-exempt information could be segregated from non-disclosable material and released to 

13 



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plaintiff. Def 's Cross-Mot. Mem., Eckert Decl. Tl 34, Burrows Decl. Tl 1 1. 
II, Standard of Review 

Courts will grant a motion for summary judgment if "the pleadings, the discovery and 
disclosure materials on file, and any affidavits, show that there is no genuine issue as to any 
material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 
56(c). When ruling on a Rule 56(c) motion, the Court must view the evidence in the light most 
favorable to the non-moving party. Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006) 
(citing Reeves v. Sanderson Plumbing Prods. , 530 U.S. 133, 150 (2000)). The Court must 
therefore draw "all justifiable inferences" in the non-moving party's favor and accept the 
non-moving party's evidence as true. Anderson v. Liberty Lobby , 477 U.S. 242, 255 (1986). The 
non-moving party, however, cannot rely on "mere allegations or denials," Burke v. Gould , 286 
F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson , 477 U.S. at 248) (quotation marks omitted), 
and "conclusory allegations unsupported by factual data will not create a triable issue of fact," 
Pub. Citizen Health Research Group v. FDA , 185 F.3d 898, 908 (D.C. Cir. 1999) (internal 
quotation marks and citations omitted). If a court concludes that "the non-moving party has failed 
to make a sufficient showing on an essential element of [its] case with respect to which [it] has 
the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. 
Catrett, 477 U.S. 317, 323 (1986). 

"[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency 
records unless the records are covered by the statute's exemptions." Students Against Genocide 
v.Dep't of State , 257 F.3d 828, 833 (D.C. Cir. 2001) (citation omitted). Courts will grant 
summary judgment to the government in a FOIA case only if the agency can prove "that it has 

14 



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fully discharged its obligations under the FOIA, after the underlying facts and the inferences to 
be drawn from them are construed in the light most favorable to the FOIA requester." Friends of 
Blackwater v. U.S. Dep't of Interior , 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (internal quotation 
marks and citations omitted). Thus, in a lawsuit brought to compel the production of documents 
under the FOIA, "an agency is entitled to summary judgment if no material facts are in dispute 
and if it demonstrates that each document that falls within the class requested either has been 
produced ... or is wholly[, or partially,] exempt [from disclosure]." Students Against Genocide , 
257 F.3d at 833 (internal quotation marks and citation omitted). 
Ill, LEGAL ANALYSIS 
The defendant contends that (1) "all of [the] SSA's withholdings that [the] plaintiff is 
challenging were made pursuant to Exemption 5, applying the deliberative process privilege," 
Def.'s Cross-Mot. Mem. at 9, (2) "all of defendant HHS's withholding that [the] plaintiff is 
challenging were [also] made pursuant to the deliberative process privilege," id, and (3) "most of 
the documents withheld by defendant HHS contain information withheld under the attorney- 
client privilege," id Further, the defendant asserts that "it is clear that [the] plaintiffs request for 
a fee waiver, as laid out in the administrative record before the Court, suffers from several 
critical flaws: many of the responsive records do not pertain to operations or activities of the 
federal government, and many of those that do are already publicly and readily available, 
meaning that their further release by the defendant (or any other government agency) will not 
significantly add to the public's knowledge of government activities, or are of a sufficiently 
trivial nature so as to not meet the 'public interest' test." Id. at 24. In response, the plaintiff 
argues that (1) "HHS has failed to meet its burden of showing that the disputed records fall 

15 



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within FOIA Exemption 5," PL's Opp'n. at 9, (2) "[t]he facts also show that HHS failed to 
properly account for several responsive documents which must be disclosed to the plaintiff," id, 
and (3) it "has met its burden of showing with reasonable specificity how its FOIA request 
satisfies the statutory requirements to qualify for a fee waiver," id The plaintiff further asserts 
that "because [the] [djefendant has failed to meet its burden of demonstrating that the attorney- 
client and deliberative privileges apply where they have been claimed, it is not entitled to 
summary judgment as a matter of law and should be ordered to produce responsive records to the 
[plaintiff] forwith." Id. at 23. The plaintiff has moved for summary judgment and requests a 
permanent injunction compelling the defendant to produce "206 . . . documents [in their entirety], 
and portions of three additional documents that have been identified by [the defendant] and the 
SSA in the Vaughn indexes." Id. at 6-7. " The plaintiff also seeks summary judgment with 
respect to thirteen documents which the defendant has failed to properly account for in its 
Vaughn index."'' Id. For the reasons set forth below, the plaintiffs motion for a permanent 
injunction is denied in part and granted in part and the defendant's cross-motion for summary 
judgment is denied in part and granted in part. 
A. EXEMPTION 5 OF THE FOIA 



After examining the Vaughn indices and the supporting declarations filed by the defendant in conjui 
with its cross-motion for summary judgment, the plaintiff indicates in its Opposition to Defendant's Cross-Motion 
for Summary Judgment and Reply in Support of Plaintiff's Motion for Injunction that it is not pursuing disclosure of 
the following documents as listed by their Vaughn index numbers: HHS Docs 1-2, 13-18, 33, 41-46, 51-52, 55, 58- 
69, 63, 72, 87, 89-90, 97-99, 109-110, 112-113, 124, 143-145, 148-149, 158-159, 161-165, 174, 181, 186-193, 194 
(partial), 195, 198, 202, 203, 207-208, 201, 221 (partial), 226-230, 237, 241-244, 246, 248, 251, 254, 258, 264-265, 
269, 274-280, 282, 283, 288, 291, 293, and SSA Docs 2-5, 7-9, 14. Pi's Opp'n at 6 n. 4. The plaintiff further states 
that it is also no longer seeking production of the GAO documents (HHS Docs 33, 186, and 109) addressed in 
Section HI of the defendant's cross motion for summary judgment. IcL However, it remains in dispute whether the 
following documents must be produced: HHS Docs. 3-12, 19-21, 22 (partial), 23-31, 34-40, 47-50, 53-54, 56-57, 61- 
62,64-71,73-86, 88,91-96, 100-108, 111, 114-123, 125-142, 146-147, 150-157, 160, 166-173, 175-180, 182-185, 
194 (partial), 196-197, 199-201, 204-206, 209, 21 1-220, 221 (partial), 222-225, 231-236, 238-240, 245, 252-253, 
255-257, 259-263, 266-268, 270-273, 281, 284-287, 289-290 and SSA Docs. 1, 6, 10-13. 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 1 7 of 33 

Exemption 5 of the FOIA provides that the "inter-agency or intra-agency memorand[a] or 
letters which would not be available by law to a party other than an agency in litigation with the 
agency" are not subject to disclosure. 5 U.S.C. § 552(b)(5). "To qualify [for non-disclosure under 
Exemption 5], a document must thus satisfy two conditions: its source must be a Government 
agency, and it must fall within the ambit of a privilege against discovery under judicial standards 
that would govern litigation against the agency that holds it." U.S. Dep't of hiterior & Bureau of 
Indian Affairs v. Klamath Water Users Protective Ass'n. 532 U.S. 1, 8 (2001). The threshold 
issue that must therefore be addressed when Exemption 5 is asserted is whether the records in 
question qualify as "inter-agency or intra-agency memorand[a]." Judicial Watch, Inc. v. U.S. 
Pep 't of Commerce. 90 F. Supp. 2d 9, 13 (D.D.C. 2000). 

"With respect to the secondary consideration under Exemption 5 -whether such materials 
would not be 'available by law in litigation with the agency,'" id^ "the parameters of Exemption 
5 are determined by reference to the protections available to litigants in civil discovery. . . ." 
Burka v. U.S. Dep't of Health & Human Servs.. 87 F.3d 508, 516 (D.C. Cir. 1996). Thus, if a 
document requested pursuant to the FOIA would normally be subject to disclosure in the civil 
discovery context, it must also be disclosed under the FOIA. Id Conversely, information that is 
routinely not subject to disclosure in the civil discovery process is exempt from disclosure under 
Exemption 5. Id. Moreover, "to justify nondisclosure under Exemption 5, an agency must show 
that the type of material it seeks to withhold is generally protected in civil discovery for reasons 
similar to those asserted by the agency in the FOIA context." Id. at 517. Thus, courts have 
incorporated three traditional civil discovery privileges into Exemption 5: (1) the deliberative 
process privilege; (2) the attorney-client privilege; and (3) the attorney work-product privilege. 

17 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 1 8 of 33 

NLRB V. Sears. Roebuck, & Co.. 421 U.S. 132, 148-49 (1975); Coastal States Gas Corp. v. Dep't 
of Energy. 617 F.2d 854, 862, 866 (D.C. Cir.1980). Only the first two privileges are asserted by 
the defendant in the instant action. 

(1) THE DELIBERATIVE PROCESS PRIVILEGE 

The plaintiff contends that "a close review of the [ Vaughn] indices reveals numerous 
instances in which [the] defendant has not provided sufficient specificity to allow an 'adequate 
adversary testing' of the claimed exemption." Pi's Opp'n. at 1 1. Specifically, the plaintiff 
asserts that "[a] large portion of the responsive records in this case are labeled as drafts by the 
government," id at 12, and "the defendant here did not indicate whether any of the designated 
'draft' documents were adopted or used in the agency's interactions with the public. . . . ," id. at 
13.' 

The deliberative process privilege protects from disclosure "documents reflecting 
advisory opinions, recommendations and deliberations that are part of a process by which 
[governmental] decisions and policies are formulated." Klamath , 532 U.S. at 8. The purpose of 
the deliberative process privilege is to ensure open communication between subordinates and 
superiors, prevent premature disclosure of policies before final adoption, and to avoid public 
confusion if grounds for policies that were not part of the final adopted agency policy happened 
to be exposed to the public. Defenders of Wildlife v. U.S. Dep't of Agric , 31 1 F. Supp. 2d 44, 
57 (D.D.C. 2004) (citations omitted). Thus, when a court reviews whether an agency properly 



The plaintiff challenges the withholding of the following responsive records that ari 
which the agency labeled as drafts: HHS Docs. 4, 7-8, 10-12, 19-21, 23-29, 31, 34-39, 47, 50, 52-53, 57, 62, 64-67, 
69-71, 73-75, 86, 91, 93, 95-96, 107-108, 114-123, 125-130, 136-142, 146-147, 150-157, 160, 166-170, 175-176, 
178-180, 182-185, 194, 199-200, 204-206, 209, 211-225, 231-235, 238-240, 252-253, 255-257, 259-263, 266-268, 
270, 284-287, 290; SSA Docs. 1, 10-13. PL's Opp'n at 12. 

18 



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withheld documents under the deliberative process privilege, the critical question to ask is 
whether "disclosure of [the] materials would expose an agency's decisionmaking process in such 
a way as to discourage candid discussion within the agency and thereby undermine the agency's 
ability to perform its functions." Formaldehyde Inst, v. Dep't of Health and Human Servs. , 889 
F.2d 1118, 1122 (D.C. Cir. 1989) (quoting Dudman Commc'ns Corp. v. Dep't of the Air Force , 
815 F.2d 1565, 1568 (D.C. Cir. 1987); see also Sears. 421 U.S. at 151 (noting that the main 
purpose of the deliberative process privilege is to "prevent injury to the quality of agency 
decisions"). 

To be exempt from disclosure under the deliberative process privilege, the agency must 
show that the chaUenged document was both (1) predecisional and (2) deliberative. Nat'l Ass'n of 
Home Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002). "A document is predecisional if it 
was 'prepared in order to assist an agency decisionmaker in arriving at his decision', rather than 
to support a decision already made." Petroleum Lifo. Corp. v. Dep't of hiterior , 976 F.2d 1429, 
1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft Eng'g Corp.. 421 U.S. 
168, 184 (1975)). The preparation of the document must therefore be "[ajntecedent to the 
adoption of an agency policy." Jordan v. U.S. Dep't of Justice , 591 F.2d 753, 774 (D.C. Cir. 
1978). However, a document cannot be characterized as predecisional "if it is adopted, formally 
or informally, as the agency position on an issue or is used by the agency in its dealings with the 
pubhc." Coastal States , 617 F.2d at 866. Examples of documents that qualify as predecisional 
include "recommendations, draft documents, proposals, suggestions, and other subjective 
documents which reflect the personal opinions of the writer rather than the policy of the 
agency ." Id 

19 



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"To fall within the deliberative process privilege, materials must bear on the formulation 
or exercise of agency policy-oriented judgment." Petroleum Lifo. Corp. , 976 F.2d at 1435. The 
information may be "a direct part of the deliberative process in that it makes recommendations or 
expresses opinions on legal or policy matters." Vaughn v. Rosen , 523 F.2d 1 136, 1 144 (D.C. 
Cir. 1975). The information may also concern "factual summaries that were written to assist [in] 
the making of a discretionary decision." Mapother v. U.S. Dep't of Justice , 3 F.3d 1533, 1539 
(D.C. Cir. 1993). Most importantly, the document must reflect the "give-and-take of the 
consultative process." Senate of Puerto Rico v. U.S. Dep't of Justice , 823 F.2d 574, 585 (D.C. 
Cir. 1987). For example, in determining whether the deliberative process privilege should apply 
to a particular document, courts often consider "the 'nature of the decisionmaking authority 
vested in the officer or person issuing the disputed document', and the relative positions in the 
agency's 'chain of command' occupied by the document's author and recipient." Animal Legal 
Def Fund, hic. v. Dep't of the Air Force, 44 F. Supp. 2d 295, 300 (D.D.C.1999) (quoting Senate 
of Puerto Rico , 823 F.2d at 586). Although there are many cases in this Circuit which discuss the 
deliberative process privilege, these cases "are of limited help . . . because the deliberative 
process privilege is so dependent upon the individual document and the role it plays in the 
administrative process." Coastal States , 617 F.2d at 867. 

Here, the plaintiff challenges the adequacy of the explanations provided for the non- 
production of Vaughn index numbers HHS 35, 36, 37, and 39, on the grounds that they are 
"vague, overly broad and fail[] to identify the intended use of this material in the agency's 
decision-making process." PL's Opp'n at 13. The plaintiff also chaUenges the stated reasons for 
withholding (1) HHS documents 50, 52, 53, 137, 138, 286, and 289, on the basis that "[n]o 

20 



Case1:05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 21 of 33 

indication is given as to the intended purpose of the questions and answers, whether the drafts 
were formally or informally adopted, or used in dealing with the public," id at 14, (2) HHS 
documents 4, 7-8, 235, which pertain to the Veterans Health Administration Executive Decision 
Memorandum about HHS's use of the Department of Veteran Affairs 's video-teleconferencing 
facilities, on the ground that "as the memorandum does not overtly call for or assist in a further 
agency decision ... it is not predecisional," id at 16, (3) HHS documents 66, 68, 69, 85, and 194 
and SSA document 12 "because they are not predecisional, as they do not assist the 
decisionmaker in formulating pohcy . . . ," id at 15, and (4) HHS documents 57, 101, and 177, 
on the ground that they are "not deliberative, as they constitute formulaic and objective recitals of 
factual information which do not, in and of themselves, assist in the policymaking," id at 17. 
The plaintiff also contends that "[the] [djefendant likewise fails to justify how drafts of the 
Office of Medicare Hearings and Appeals (OMHA) Hearings play a role in the decison-making 
process." Id. 

The defendant invokes the exemption of 5 U.S.C. § 552(b)(5) as grounds for not 
disclosing these documents. Def 's Reply. 3-7. The defendant indicates in its Vaughn index that: 
(1) documents 35-36, 39 contain advice, recommendations, and suggestions shared between the 
attorneys in its General Counsel's office and a Department of Justice attorney who represents the 
defendant in litigation, Def 's Cross-Mot. Mem., (Vaughn Lidex of Withheld Documents for 
First Literim Release, dated January 19, 2006) ("HHS Vaughn Index") at 32-35; (2) documents 
37 and 39 contain advice, recommendations, and suggestions shared between attorneys in the 
defendant's General Counsel's office regarding draft questions and answers about conducting 
Medicare appeals hearings with the use of video-conferencing, id. at 34-35; (3) documents 50, 

21 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 22 of 33 

52-53 contain advice, recommendations, suggestions, and confidential attorney-client 
communications regarding a "draft myths and realities document" submitted to the defendant's 
General Counsel's office for legal review, id at 42, 44-45; (4) documents 66, 68-69, 85, 137, 
138, 194, 286 contain advice, recommendations, and suggestions regarding a "draft myths and 
realities document," which included the author's recommendation of what the final document 
should indicate, id, at 56, 58, 70, 85, 110-11,156, 216; (5) documents 101, 289 contains advice, 
recommendations, and suggestions regarding suggested responses to possible questions about the 
proposed interim final rule or draft regulations along with comments, id at 81, 217; and (6) 
documents 4, 7-8, 57, 177, 235 contain advice, recommendations, suggestions, and confidential 
attorney-client communications regarding legal advice provided to the defendant, the defendant's 
attorney's mark-ups of a draft executive decision memorandum and draft memorandum of 
understanding submitted to the defendant's General Counsel's office for legal review, id at 4, 7- 
8, 49, 145, 235. Further, Robert Eckert, the Director of the defendant's Freedom of 
Liformation/Privacy Act Division, specifically attests to the predecisional and deliberative nature 
of the withheld documents and declarants Patricia Mantoan and Ethel Burrows represent in their 
declarations that the draft documents at issue were not adopted by the defendant or the SSA. 
Def 's Cross-Mot. Mem., Eckert Decl. Tl Tl 32-33; Def 's Reply, Supplemental Declaration of 
Patricia M. Mantoan Tl 4, Supplemental Declaration of Ethel Burrows Tl 14-15. 

Based on the descriptions provided by the defendant, the Court concludes that HHS 
documents 4, 7-8, 35, 36, 37, 39, 50, 52, 53, 57, 66, 68, 69, 85 101, 137, 138, 177, 197, 235, 286, 
289 and SSA document 12 are protected from disclosure under the FOIA's deliberative process 
exemption. As noted above, the deliberative process privilege protects from disclosure 

22 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 23 of 33 

"documents reflecting advisory opinions, recommendations, and deliberations that are part of a 
process by which [governmental] decisions and policies are formulated." Klamath , 532 U.S. at 
2. Indeed, the very purpose of the deliberative process privilege is to ensure open 
communication between subordinates and superiors, prevent premature disclosure of policies 
before final adoption, and avoid public confusion by not exposing facts considered for adopting 
agency policy when those factors are not the actual reason for the policy's adoption. Defenders 
of Wildlife , 311 F. Supp. 2d at 57. The descriptions of the aforementioned documents clearly 
establish that these documents promote these objectives. Accordingly, HHS documents 4, 7-8, 
35, 36, 37, 39, 50, 52, 53, 57, 66, 68, 69, 85 101, 137, 138, 177, 197, 235, 286, 289 and SSA 
document 12 are exempt from disclosure under the deliberative process privilege of Exemption 
5. 

(2) THE ATTORNEY-CLIENT PRIVILEGE 

The plaintiff contends that "for the vast majority of the withheld documents which [the] 
defendant has invoked the attorney-client privilege, [the] defendant's Vaughn entries fail to 
clearly and specifically identify the legal advice sought and given." PL's Opp'n at 23. In 
opposition, the defendant responds that "there is no requirement that an agency specify the advice 
asked for and provided. Rather, an agency must show that the withheld information pertains to 
confidential communications between attorney and client and relates to a legal matter for which 
the client has sought the attorney's advice."*^ Def 's Reply at 14. 

The attorney-client "privilege has a proper role to play in exemption five cases . . . ." In re 



The defendant has asserted the attorney-client privilege for 118 documents of the 150 documents 
challenged by the plaintiff Def 's Reply at 14 n. 9. 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 24 of 33 

Lindsev. 158 F.3d 1263, 1269 (D.C. Cir. 1998). Aside from the protections provided by the 
attorney-client privilege in the private sector, "the privilege also functions to protect 
communications between government attorneys and client agencies or departments, as evidenced 
by its inclusion in the FOIA, much as it operates to protect attorney-client communications in the 
private sector." Id "Thus, 'when the Government is dealing with its attorneys as would any 
private party seeking advice to protect personal interests, and needs the same assurance of 
confidentiality so it will not be deterred from full and frank communications with its counselors,' 
Exemption 5 applies." Id (quoting Coastal States , 617 F.2d at 863). 

To invoke the attorney-client privilege, an agency must show that the document "(1) 
involves 'confidential communications between an attorney and [his or her] client' and (2) relates 
to a 'legal matter for which the client has sought professional advice.'" Judicial Watch, Inc. v. 
U.S. Postal Serv. ( Judicial Watch I) , 297 F. Supp. 2d 252, 267 (D.D.C. 2004) (quoting Mead 
Data Cent, Inc. v. U.S. Dep't of the Air Force. 566 F.2d 242, 252 (D.C. Cir. 1977)). However, 
the attorney-client privilege does not permit an agency "to withhold a document merely because 
it is a communication between the agency and its lawyers." Id. Rather, the agency must show 
that the information provided to its lawyers was intended to be confidential "and was not known 
by or disclosed to any third party." Id. (quoting Mead Data , 566 F.2d at 254). 

Here, the defendant has identified in its Vaughn index that the challenged documents for 
which the privilege is asserted consist of confidential attorney-client communications and relate 
to a legal matter for which the defendant sought professional advice. A Vaughn index must 
"adequately describe each withheld document, state which exemption the agency claims for each 
withheld document, and explain the exemption's relevance." Johnson v. Executive Office for 

24 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 25 of 33 

U.S. Attorneys. 310 F.3d 771, 774 (D.C. Cir. 2002). A Vaughn index "must be sufficiently 
detailed" so as to permit the FOIA requester and the court to review the applicability of the 
claimed FOIA exemptions on a document by document basis. Judicial Watch I , 297 F. Supp. 2d 
at 270. In other words, the Vaughn index "must correlate facts in or about each withheld 
document with the elements of the [asserted] privilege." Id at 260. An agency may submit other 
materials to supplement its Vaughn index, such as declarations, that aid the determination of 
whether the claimed exemptions are properly invoked. Id. at 257. And, the defendant has 
provided an affidavit from Robert Eckert, wherein he attests that some material withheld under 
Exemption 5 was also protected by the attorney-client privilege "because they contained 
confidential communications between agency attorneys and their agency clients for the purpose 
of seeking legal advice or rendering legal advice about the transfer of the Medicare appeals 
flinction from [the] SSA to the HHS, the proposed use of [video-conferencing], and various draft 
documents, such as draft regulations, draft hearings manuals, draft memoranda of understanding, 
drafting talking points, and draft reports to Congress." Def 's Cross-Mot. Mem., Eckert Decl. Tj 
34 (identifying the following HHS documents as withheld under Exemption 5 because such 
documents are protected by the attorney-client privilege: 1-2, 4-5, 7-12, 19-36, 38, 40-41, 47-51, 
53-60, 62-71, 74-77, 82-86, 88-89, 91, 93, 95-103, 107-108, 111-112, 114-125, 127-129, 132- 
144, 146-170, 174-185, 188-209, 211-225, 231-232, 235, 239-240, 243, and 258). In addition, 
the defendant has identified the source and recipient of the communications, which is critical to 
the Court's assessment of whether the communications are between an attorney and a client. 
Here, the defendant has invoked the attorney-client privilege as to documents identified in the 
Vaughn index that constitute communications between the defendant, other agencies that are 

25 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 26 of 33 

clients of the defendant, and attorneys in the defendant's General Counsel's office. Accordingly, 

the Court finds that these disputed documents are protected from disclosure by the attorney-client 

privilege.'^ 

B. THE PLAINTIFF'S FEE WAIVER REQUEST 

The defendant contends that the plaintiffs fee waiver justification fails to satisfy the first, 
second, and fourth prongs of the "public interest" fee waiver test. Def 's Cross-Mot. Mem. at 19- 
20. Specifically, the defendant asserts that: (1) "[a]s to the first factor, many of the records 
released by [the] defendant while responsive, do not, in fact, describe federal government 
activity, but instead are brochures and pamphlets submitted by private parties seeking to do 
business with the federal government," id at 21; (2) "as to the second and fourth portions of the 
fee waiver test, as defendant's May 15, 2006 letter pointed out, a substantial portion of the 
released records - - over 90% of what had been released - - consists of materials already readily 
available on the Internet or in the Federal Register ," id. at 22; and (3) "some of the responsive 
records, though technically responsive to [the] plaintiffs request, contained no substantive 
connection to the overall subject of [the] plaintiffs request, and instead dealt with mere 
administrative matters of no significance to the underlying subject of [the] plaintiffs request," id 
at 23. hi opposition, the plaintiff responds that: (1) "it has met its burden of identifying with 



The plaintiff challenges the withholding of several of these responsive documents on the grounds that the 
documents contain no dates. Specifically, the plaintiff challenges on this basis the defendant's withholding of HHS 
documents 137-142, 147, 150-157, 160, 169, 182-185, 197, 201, 204-205, 209, 219, 236, 253, 256-257, 259-263, 
266-268, 27-273, 287, 289, and SSA document 4. This challenge is without merit. Although the documents are 
undated, the defendant has adequately described each of these withheld documents, stated that they are exempted 
from disclosure by the attorney-client privilege, and explained the exemption's relevance. Further, the defendant has 
indicated that the documents contain confidential client-communications under circumstances where the defendant 
has sought legal advice from its agency attorneys about several draft documents and the use of video-conferencing to 
conduct the Medicare appeal hearings. 

26 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 27 of 33 

reasonable specificity the operations or activities of HHS that are implicated by its FOIA 
request," PL's Opp'n. at 29; (2) "the requested items clearly and directly concern activities and 
operations undertaken by the government in developing the new [video-conferencing] hearing 
system," id at 30; (3) its " FOIA request[] . . . sought meaningful information, which was not 
readily accessible to the public, clarifying how the government had operated to develop [video- 
conferencing administrative law judge] hearings," id; (4) it " specified in its fee waiver request 
that it would 'use the information requested concerning [video-conferencing] hearings to further 
the interests of Medicare beneficiaries and their advocates who will be required to use the new 
hearing process,'" id at 30; (5) "the request identifies specific ways in which the organization 
'educates and advocates on behalf of Medicare beneficiaries nationwide,'" id at 31; and (6) "the 
information's contribution to public understanding would be significant," id 

Generally, the FOIA requires those who make document requests to pay for the search 
and duplication costs for the disclosed documents. Larson v. CIA , 843 F.2d 1481, 1482 (D.C. 
Cir.1988) (citing Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 153 
(1980)). However, in certain situations those costs may be reduced or waived completely. 
Judicial Watch, hic. v. U.S. Dep't of Justice, 185 F. Supp. 2d 54, 58 (D.D.C. 2002); see 5 U.S.C. 
§ 552(a)(4)(A)(ii)(n) (authorizing fee reductions for requests from educational or noncommercial 
scientific institutions involved in scholarly or scientific research, or from representatives of the 
news media); 5 U.S.C. § 552(a)(4)(A)(iii) (authorizing fee waivers or reductions for requests that 
are in the public interest). The public interest fee waiver provision of the FOIA provides that 
"[d]ocuments shall be furnished without any charge or at a charge reduced below the fees 
established [by the FOIA] if disclosure of the information is in the public interest because it is 

27 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 28 of 33 

likely to contribute significantly to public understanding of the operations or activities of the 
government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). 

The burden of satisfying the "public interest standard" is on the requester. Larson , 843 
F.2d at 1483 (citing McClellan Ecological Seepage Situation v. Carlucci. 835 F.2d 1282, 1284- 
85 (9th Cir. 1987)). Courts employ a two part test to determine whether the requester has 
satisfied this burden. Id First, the requester must demonstrate "that the disclosure of the 
information [is] 'likely to contribute significantly to public understanding of the operations or 
activities of the government.'" Id (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). Second, the requester 
must establish that it does "not have a commercial interest in the disclosure of the information 
sought." Id (quoting 5 U.S.C. § 552(a)(4)(A)(iii)). 

The defendant has promulgated a regulation setting out the four criteria it uses to 
determine whether a party making a FOIA request has satisfied the public interest fee waiver or 
reduction provision of the statute. See 45 C.F.R. § 5.45(b) (2000). Under this regulation, "[t]he 
disclosure passes the [public interest] test only if it furthers the specific public interest of being 
likely to contribute significantly to public understanding of government operations or activities, 
regardless of any other public interest it may further." Id 

In analyzing this question, [the defendant] consider [s] the following factors: 

(1) How, if at all, do the records to be disclosed pertain to the operations or activities of 
the Federal Government? 

(2) Would disclosure of the records reveal any meaningful information about government 
operations or activities? Can one learn from these records anything about such operations 
that is not already public knowledge? 

(3) Will the disclosure advance the understanding of the general public as distinguished 
from a narrow segment of interested persons? .... 

(4) Will the contribution to public understanding be a significant one? Will the public's 
understanding of the government's operations be substantially greater as a result of the 
disclosure? 



Case 1 :05-cv-02266-RBW Document 28 Filed 09/1 7/2008 Page 29 of 33 

Id. Since the defendant is challenging only the plaintiffs satisfaction of factors one, two, and 
four of its test for assessing a fee waiver request, the Court will address only those factors. 

In reviewing the defendant's decision on the plaintiff fee waiver request, the Court is 
limited to the administrative record that was before the agency at the time of its decision. 5 
U.S.C. § 552 (a)(4)(A)(vii). The Court agrees with the plaintiff that this record shows that it has 
satisfied its burden of establishing that it is entitled to a fee waiver under 5 U.S.C. § 552 
(a)(4)(A)(iii). 

The most pertinent information that was part of the administrative record before the 
agency at the time of its final fee waiver denial were the plaintiffs letter of October 31, 2005, 
which outlined its claim that it satisfies the applicable standard for a fee waiver, and the 
defendant's letter of May 15, 2006, upholding its initial denial of the fee waiver.'" Upon review 
of the administrative record, the Court is convinced that the plaintiff has satisfied the first prong 
of 45 C.F.R. § 5.45(b)(1) by demonstrating that the subject of the requested records concerns the 
"operations or activities of the Federal government." 45 C.F.R. § 5.45(b)(1). The plaintiffs 
request seeks "[a]ll articles, reports, studies, memoranda, letters and writings of any kind 
concerning videoconferencing (VTC) that have been or are being reviewed and/or used in 
designing and/or establishing the Medicare administrative law judge hearings by VTC . . . ." 
Def 's Cross-Mot., Eckert Deck, Ex. 1 (Hart Aug. 25, 2005 Letter). The request is specific and 
the information sought concerns activities and operations undertaken by the government in 



The plaintiff filed an administrative appeal of the defendant's fee waiver denial in a letter dated February 
17, 2006. Def 's Cross-Mot. Mem., Eckert Decl. H 12 (inaccurately stating that the letter is dated February 21, rather 
than February 17), Ex. 7 (February 17, 2006 Letter). This letter restated the plaintiff's grounds for a fee waiver 
expressed previously in its October 31, 2005 letter. 

29 



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developing the new video-conferencing hearing system. 

This conclusion is not altered by the fact that some of the released documents were 
brochures and pamphlets submitted by private parties seeking to do business with the federal 
government. Although the defendant takes the opposing position, it acknowledges that the 
brochures and pamphlets submitted to it from outside companies were reviewed by the agency in 
its consideration of whether to implement video-conferencing. Def 's Cross-Mot., Eckert Deck, 
Ex.1 1 (Letter from Christian Pearson, Deputy Assistant Secretary for Public Affairs (Media), to 
Sally Hart, Center for Medicare Advocacy, Inc., dated May 15, 2006) ("Pearson May 15, 2006 
Letter") at 3. hi fact, the defendant admits that such documents "come[] from the companies 
soliciting business with the federal government or materials downloaded from the [ijnternet in 
connection with the [agency's] review of [whether it should implement video-conferencing]." Id 
The material can therefore provide insight on the options and factors under consideration by the 
agency as it designed and implemented the new hearings system. Accordingly, they concern the 
activities of the federal government. 

The plaintiff has also satisfied the second and fourth factors of the defendant's fee waiver 
test. Part of the reason the defendant denied the plaintiffs fee waiver request was based on the 
position that the plaintiff did not "demonstrate[] how [its] proposed dissemination of material 
already in the public domain would reveal any meaningful information about government 
activities that is not already public knowledge." Def 's Cross-Mot. Mem. at 2. Specifically, the 
defendant asserted that the plaintiff did not "explain[] in any matter how release to [the plaintiff] 
of publicly available information would add anything to the public understanding, nor show[] 
how [its] redistribution of that same information would contribute to that understanding in a 

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Case1:05-cv-02266-RBW Document 28 Filed 09/17/2008 Page 31 of 33 

significant way." Id. The Court disagrees with the defendant's assessment. 

The plaintiffs fee waiver request should have been evaluated based on the potential 
contribution the requested information would have on the public's understanding, and not on the 
fact that some of the documents were pubhcly available. "[A] fee waiver request should be 
evaluated based on the face of the request and the reasons given by the requestor in support of the 
waiver, 'not on the possibility that the records may ultimately be determined to be exempt from 
disclosure.'" Judicial Watch, hic. v. U.S. Dep't of Transp. , 2005 WL 1606915, *4 (D.D.C. 2005) 
(citing Judicial Watch, Inc. v. U.S. Dep't of Energy , 310 F. Supp. 2d 271, 295 (D.D.C. 2004) 
(quoting Carney v. U.S. Dep't of Justice , 19 F.3d 807, 815 (2d Cir. 1994) (internal quotation 
marks omitted). Similarly, "[t]he mere fact that material is in the public domain does not justify 
denying a fee waiver; only material that has met a threshold level of public dissemination will not 
further 'public understanding.'" Prison Legal News v. Lappin , 436 F. Supp. 2d 17, 24 (D.D.C. 
2006) (quoting Campbell v. Dep't of Justice , 164 F.3d 20, 36 (D.C. Cir. 1998)). Although the 
defendant contends that some of the documents released to the plaintiff consist of published 
regulations, a report to Congress, a statute, and a Government Accountability Report, which are 
readily accessible to the public through the internet, Def 's Cross-Mot. Mem., Ex. 1 1 (Pearson 
May 15, 2006 Letter), "[tjhere is a significant difference between locating the requested 
information ... on the internet, as opposed to having access to the information in a single 
document." Prison Legal News , 436 F. Supp. 2d at 25. Since the plaintiff prepares written 
material and provides training for Medicare beneficiaries, advocates and attorneys, comments on 
proposed Medicare legislation and regulations, represents beneficiaries in the administrative 
appeals process, and brings individual and class action lawsuits on behalf of beneficiaries, PL's 

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Mot., Ex. C (Hart October 31, 2005 Letter) & Def.'s Cross-Mot. Mem., Ex. 3 (Hart October 31, 
2005 Letter), the plaintiff can make the information more accessible to members of the public 
who cannot readily locate a particular regulation, provision or report on a government website. 
In any event, "proof of the ability to disseminate the released information to a broad cross-section 
of the public is not required." Judicial Watch, Inc. v. Department of Justice , 365 F.3d 1 108, 
1 126 (D.C.Cir. 2004). 

The plaintiff has also established that it does not have a commercial interest in the 
disclosure of the disclosed information. The plaintiff noted in its fee waiver request that it is a 
well known not-for profit-organization that educates and advocates on behalf of Medicare 
beneficiaries nationwide. PL's Mot., Ex. C (Hart October 31, 2005 Letter); Def 's Cross-Mot. 
Mem., Eckert Deck, Ex. 3 (Hart October 31, 2005 Letter). "When disclosure 'is in the public 
interest because it is likely to contribute significantly to public understanding of the operations or 
activities of the government and is not primarily in the commercial interest of the requester,' the 
agency must reduce fees further or eliminate them altogether." Hall v. C.I.A. , 437 F.3d 94, 97 
(D.C. Cir. 2006) (citing § 552(a)(4)(A)(iii)). Since the plaintiffs request demonstrates with 
reasonable specificity that disclosure was in the public interest and not for a commercial interest 
of the plaintiff, the defendant should have granted the plaintiffs fee waiver request. 
Accordingly, the defendant's denial of the plaintiffs public interest fee waiver request is 
reversed and its summary judgment motion on this issue is denied. 
IV. CONCLUSION 

For the foregoing reasons, the plaintiffs motion for a permanent injunction is denied in 
part and granted in part and the defendant's cross-motion for summary judgment is also denied in 

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part and granted in part. Specifically, the plaintiffs motion for permanent injunction is granted 
as to it's fee waiver request and denied as to its request for a permanent injunction requiring the 
defendant to produce all the challenged documents. On the other hand, the defendant's cross- 
motion for summary judgment is granted as to all the challenged documents that were withheld 
pursuant to Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5), and denied as to its denial of the 
plaintiffs request for a pubhc interest fee waiver." 
SO ORDERED, 



REGGIE B. WALTON 
United States District Judge 



An amended order consistent with this Memorandum Opinion is being issued contemporaneously 
herewith.